principal pre-Roe statutes prohibited performance of
an abortion on a pregnant woman unless the procedure was undertaken “for
the purpose of saving [her] life.” These
statutes were declared unconstitutional in Roe v. Wade. Enforcement
of the statutes was not enjoined. Although the pre-Roe abortion
statutes have not been expressly repealed, the United
States Court of Appeals for the Fifth Circuit has held that
the statutes have been repealed by implication with the enactment
of significant post-Roe legislation regulating the practice
of abortion. That
holding is not binding upon a state court, but may be persuasive. Whether
the pre-Roe statutes would be enforceable if Roe
v. Wade were overruled thus depends on whether they have
been repealed by implication, a question on which no state
court has pronounced an opinion to date.
Tex. Penal Code Ann. arts. 1191, 1192,
1193, 1194, 1196 (West 1961), transferred to Tex. Rev. Civ. Stat. Ann. arts. 4512.1, 4512.2, 4512.3, 4512.4,
4512.6 (West 1976). See Tex. Acts 1973, ch. 399, § 5 & Disp.
Table at 996e.
113 (1973). Prior to Roe, the Texas Court of Criminal
Appeals rejected a constitutional challenge to the statutes. See
Thompson v. State, 493 S.W.2d 913 (Tex. Crim. App.
1971), vacated and remanded, 410 U.S. 950 (1973), on
remand, 493 S.W.2d 793 (Tex. Crim. App. 1973).
struck down in Roe have not been reprinted in the
current volumes of either the Texas Revised Civil Statutes
Annotated or the Texas Penal Code. The statutes, however,
have not been expressly repealed.
McCorvey v. Hill, 385 F.3d 846 (5th Cir.
2004), cert. denied, Feb. 22, 2005, Docket No
from the pre-Roe statutes, it is unlikely that the
Texas post-viability statute, see Tex.
Health & Safety Code § 170.002 (West 2001),
would effectively prohibit post-viability abortions because
it allows abortions for mental, as well as physical, health
reasons. As the experience in California demonstrated,
mental health exceptions were widely abused. See People
v. Barksdale, 503 P.2d 257, 265 (Cal. 1972) (noting
that more than 60,000 abortions were reported in 1970,
more than 98% of which were performed for alleged reasons
of mental health). such abortions to be performed to preserve
the pregnant woman’s life or health, health not being defined
in the statute. In interpreting the undefined health exception
in the pre-Roe District of Columbia abortion statute,
the Supreme Court held that “the general usage and modern understanding of the word ‘health’ . . . includes psychological
as well as physical well-being.” United States v. Vuitch,
402 U.S. 62, 72 (1971). See also Doe v. Bolton,
410 U.S. 179, 192 (1973) (in determining whether an abortion
is medically necessary, “all factors– physical, emotional,
psychological, familial, and the woman’s age–relevant to
the well-being of the patient” may be considered). There
would be few, if any, abortions that could not be justified
on psychological or emotional grounds.